Last updated Dec. 29, 2017.
When consulting with potential clients, one question always arises: If I sue my employer, how long will it take before I see a resolution of my claim?
It’s a very good question, but unfortunately, there’s no hard-and-fast answer, since the pace of any employment lawsuit depends on the underlying circumstances. For example, some suits settle relatively early because the employer has little desire to litigate; others proceed all the way to trial because the employer wants to fight the suit every step of the way.
The upshot is that the length of a discrimination case can vary greatly, from a few months to a few years. That being said, there are court rules and practice rules-of-thumb that give us a broad yardstick as to how the average employment lawsuit proceeds.
Complaint and Answer: Two Months
Your discrimination case begins with the filing of your complaint in the New Jersey Superior Court for your county. In layman’s terms, a complaint is your “story” — it is a factual description of the discrimination and adverse employment actions you allege you were subjected to by your employer. At the end of your complaint, your attorney sets forth numbered “counts,” or claims, that charge your employer with violating New Jersey law, such as the Law Against Discrimination (the “LAD”) or the Conscientious Employee Protection Act (“CEPA,” or the “Whistleblower Law”).
Typically, complaints are filed by mail. Once the court receives your complaint, it sends a date-stamped copy back to your attorney. Usually, it takes one to two weeks from the time a complaint is dropped in the mail to the time the filing attorney receives a stamped copy back from the clerk of the court. That stamped copy will also include a dated track assignment notice.
At this point, your attorney has fifteen (15) days from the date on the track assignment notice to serve your complaint upon your employer. Once your employer has been served, it has thirty-five (35) days to file an answer with the court. Your employer’s answer is simply a document responding to your complaint, either admitting or denying the allegations you made. The answer also asserts certain legal defenses available to your employer.
The Discovery Period: 15 Months
“Discovery” refers to the time period New Jersey courts grant the parties to gather all the evidence necessary to litigate a claim and proceed to trial. Discovery begins the date the first answer is filed or 90 days after the first defendant is served, whichever occurs first. For employment cases, the discovery period is a generous fifteen (15) months.
As a plaintiff pursuing a lawsuit, this may seem like an enormous amount of time. However, a lot of evidence needs to be gathered and evaluated during those months.
During the discovery period:
- The parties request and produce documents: Each side demands that the other turn over copies of the relevant documents in the case. On your behalf, your attorney will ask your employer for documents such as your performance evaluations, disciplinary write-ups, or any other written materials your employer may have relied upon in terminating you or otherwise subjecting you to an adverse employment action. In return, your employer’s counsel will ask you to produce documents like physician’s records documenting medical leave or treatment for emotional distress, tax records indicating your income post-employment, or resumes sent out in your post-termination job search.
- The parties exchange interrogatories: Interrogatories are simply written questions that each side submits to the other, asking for information relevant to the case. The written answers provided in response to interrogatories become part of the evidentiary record.
- The parties conduct depositions: Depositions are often the most important and time-consuming part of discovery. A deposition is a proceeding wherein a party or a witness to the lawsuit gives sworn testimony under questioning by the opposing side’s attorney. A court reporter attends the deposition to record every word and compile the testimony into a transcript that becomes part of the evidentiary record.
All the major actors and players relevant to your case are deposed, and as the plaintiff/employee, you will be deposed as well. Depositions can take just an hour or so or stretch on for multiple hours, depending upon the importance of the testimony.
The discovery process can pose logistical challenges that require the attorneys to request additional time for discovery from the court. For instance, critical witnesses may need to be deposed out-of-state, or important records may need to be located. For this reason, the discovery period sometimes extends beyond 15 months.
On the other hand, cases sometimes settle during the discovery period, thanks to mediation. Early on, typically as the parties are beginning discovery, the court orders both sides to sit down with a mutually agreed-upon mediator to discuss the pros and cons of the case and hopefully negotiate a resolution. A few claims may reach settlement through early mediation; most do not. However, the parties can still agree to mediate at a later date, after more evidence has been collected and each side has a clearer sense of the strength or weakness of its position.
After the discovery period ends, the employer/defendant typically files a motion for summary judgment. Summary judgment is a way for the employer to dispose of a case — i.e., get it kicked out of court — before it goes to trial. In essence, the employer argues that, even if a jury considered all the evidence gathered during discovery in the light most favorable to the employee, there are no critical factual issues in dispute and the employer should win the case “as a matter of law.” In other words, the employer argues that it’s obvious from the evidentiary record that the employee did not suffer from discrimination or retaliation.
Once the employer files for summary judgment, your attorney will prepare and file an opposition brief in response, essentially arguing that the evidence indicates you were discriminated/retaliated against, and that there are numerous factual disputes that need to be decided by a jury. The employer then is allowed one last brief in reply before the motion is decided by a judge. Usually, the attorneys for both sides are granted oral argument on the motion, meaning they are allowed to argue the respective merits of their cases directly to the judge.
If the judge grants summary judgment to the employer, your discrimination case is dismissed and you will need to consult with your attorney as to whether to appeal the judge’s decision. If the judge denies the employer summary judgment, your case proceeds to trial. This is often the point at which cases settle, since trials are expensive and fraught with risk (it is impossible to predict with 100% accuracy what a jury will decide).
From the employer’s filing of the summary judgment motion to the rendering of the judge’s decision, the entire foregoing process can take around a month and a half to several months, depending upon the judge’s schedule, or “motion calendar.”
Going to Trial
Barring a large number of witnesses and/or complicated legal or factual issues, most employment discrimination trials last around a week or so. However — and to the frustration of many plaintiff-employees — the trial date is often subject to change, sometimes multiple times. Since each judge is juggling a large number of cases, court dockets often “clog” and trials are inevitably postponed by weeks or even months. Sometimes the court notifies the parties in advance of such a postponement. Other times, the parties show up in court on the scheduled first day of trial, only to be informed that their discrimination case is on “trial call,” and that they will need to check in on a daily basis until their case is allowed to proceed.
Discrimination Settlements: The Big Picture
As you’ve no doubt gleaned by now, an employment lawsuit is often lengthy, with deadlines that are often subject to change. It requires stamina and patience on your part. However, if your attorney believes you have a solid claim of employment discrimination/retaliation, and if you are willing to stick the process out, you may realize the satisfaction of settling your claim or winning a jury verdict in your favor — something that is well worth the wait.
If you would like to discuss a potential employment claim and its ramifications, contact us today for a consultation free-of-charge.